Robinson v. ITT Corporation Systems Division et al

Filing 11

ORDER denying as moot 3 Motion to Dismiss. Ordered by Judge Clay D. Land on 07/10/2009. (lra)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MICHAEL ROBINSON, Plaintiff, vs. ITT CORPORATION SYSTEMS DIVISION, BOB HIBBARD, DUDLEY HARDEN, RALSTON JARRETT, STEVEN HARPER, VIRGINIA BARNES, and CHAQUITA HOUREL, Defendants. * * * * * * * * ORDER Defendants, alleging diversity jurisdiction, removed this state law defamation action from the Superior Court of Muscogee County, Georgia pursuant to 28 U.S.C. § 1441. does not exceed $75,000 and Because the amount in complete diversity of CASE NO. 4:09-CV-47(CDL)

controversy

citizenship does not exist among the parties, this Court does not have subject matter jurisdiction over this action. Accordingly, this action is remanded sua sponte to the Superior Court of Muscogee County, and Defendants' Motion to Dismiss for failure to state a claim (Doc. 3) is denied as moot.1

Federal Rule of Civil Procedure 12(h)(3) provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."

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FACTUAL ALLEGATIONS Plaintiff, a citizen of Georgia, filed his Complaint in the Superior Court of Muscogee County, Georgia, asserting a state law defamation claim2 against Defendants, some of whom are Georgia residents.3 Plaintiff alleges that he suffered damages due to the

defamation and seeks unspecified "special, general and punitive damages" against Defendants, as well as "attorney['s] fees" and any "other additional relief as the Court may consider just and

equitable[.]"

(Compl. ¶¶ 8(a), 8(c), 8(d).)

Defendants acknowledge that complete diversity does not exist but maintain that the Georgia defendants are fraudulently joined, and thus their citizenship should be disregarded in determining diversity

While the Court has its doubts as to whether Plaintiff has alleged facts sufficient to state a claim upon which relief can be granted, the Court, lacking subject matter jurisdiction over this action, cannot make a determination on the merits. In his Complaint, Plaintiff alleges that all Defendants are citizens of Georgia. (See Compl. ¶ 2.) Defendants, in their Notice of Removal, assert that Defendant ITT Corporation Systems Division is not a citizen of Georgia. (Defs.' Notice of Removal ¶ 6; see generally LeBar Decl., Apr. 29, 2009.) For diversity jurisdiction purposes, a corporation is d e em e d a citizen of the state of its incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1). Here, Defendant ITT C orporation Systems Division, a division of ITT Corporation, has its principal place of business in Colorado. (Defs.' Notice of Removal ¶ 6; see LeBar Decl. ¶¶ 3-4.) ITT Corporation is an Indiana corporation and has its principal place of business in New York. (Defs.' Notice of Removal ¶ 6; see LeBar Decl. ¶ 4.) Neither ITT Corporation nor ITT Corporation Systems Division conducts the majority of its business in Georgia. (Defs.' Notice of Removal ¶ 6; see LeBar Decl. ¶ 5.) Therefore, the Court finds, for the purposes of this Order only, that Defendant ITT Corporation Systems Division is not a citizen of Georgia. However, it is undisputed that Defendants Bob Hibbard, Dudley Harden, Ralston Jarrett, Stev e n Harper, Virginia Barnes, and Chaquita Hourel are citizens of Georgia. (See Compl. ¶ 2; Defs.' Notice of Removal ¶ 7.)
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jurisdiction.

Defendants also acknowledge that no specific amount Nevertheless,

of damages has been pled or otherwise alleged.

Defendants argue that the damages should be deemed to exceed the jurisdictional amount. STANDARD FOR REMOVAL A defendant may only remove a civil action to federal court if the federal court could possess original jurisdiction over the matter. 28 U.S.C. § 1441(a). In this case, Defendants premise

removal on diversity jurisdiction, which exists when the parties are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1).

The removing defendant "bears the burden of proving that federal jurisdiction exists." (11th Cir. 2001). Williams v. Best Buy Co., 269 F.3d 1316, 1319

"If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). DISCUSSION Based upon a review of Plaintiff's Complaint and Defendants' Notice of Removal, the Court finds that nothing in the present record supports diversity jurisdiction. The present record demonstrates a

lack of complete diversity among the parties, and it would be sheer

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speculation to conclude that the amount in controversy exceeds the jurisdictional amount.4 I. Amount in Controversy In this case, Plaintiff seeks "special, general and punitive damages" as well as "attorney['s] fees" and "other additional relief as the Court may consider just and equitable[.]" (Compl. ¶¶ 8(a), 8(c), 8(d).) Because Plaintiff has not pled a specific amount of

damages, Defendants must establish by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). "When the complaint does not claim a

specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in

controversy exceeds the jurisdictional requirement."

Williams, 269

F.3d at 1319. If, however, the jurisdictional amount is not facially apparent from the complaint, "the court should look to the notice of removal and may require evidence relevant to Id. the amount in

controversy at the time the case was removed."

"A conclusory

4 The Court may examine the pleadings, along with any evidence submitted by the parties, to determine whether it has subject matter jurisdiction over this action. See, e.g., Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005); Leonard v. Enter. Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002). Since the Court finds a lack of jurisdiction sua sponte Defendants have not had an opportunity to present evidence beyond the present record to support jurisdiction. Therefore, as discussed more fully below, Defendants may file a motion for reconsideration if they wish to submit evidence in support of any good faith contention that this Court has subject matter jurisdiction over this action.

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allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant's burden." Id. at 1319-20. In this case, Defendants make a conclusory and unsupported allegation that the amount in controversy element has been met. Specifically, Defendants merely assert that "[i]t is apparent from the face of Plaintiff's Complaint that Plaintiff seeks an amount in excess of seventy-five thousand dollars ($75,000)" because

"[a]lthough Plaintiff does not identify a specific dollar value in his Complaint, he seeks recovery of special, general and punitive damages, injunctive relief[,] and attorney['s] fees for alleged defamation." (Defs.' Notice of Removal ¶ 8 (internal quotation marks omitted).) It is not facially apparent from Plaintiff's Complaint

that the amount in controversy exceeds $75,000, and Defendants' Notice of Removal is not sufficient to establish that the amount in controversy exceeds the jurisdictional amount. Therefore, based on

the present record, the Court finds that the jurisdictional amount has not been satisfied, and thus this Court lacks jurisdiction over this action.5

Since the Court makes this finding sua sponte, the Court finds it appropriate to permit Defendants to submit additional briefing and evidence on this issue. See, e.g., Williams, 269 F.3d at 1319. A ccordingly, Defendants may seek reconsideration of the Court's finding by filing a motion for reconsideration within fourteen days of today's Orde r if Defendants possess evidence which they in good faith maintain supports a finding of subject matter jurisdiction.

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II.

Complete Diversity of Citizenship The present record also fails to support a finding of complete

diversity of citizenship among the parties, which is an alternative reason supporting this Court's remand for lack of subject matter jurisdiction. Plaintiff is a citizen of the state of Georgia, and

Defendants Hubbard, Harden, Jarrett, Harper, Barnes, and Hourel are also citizens of the state of Georgia. Notice of Removal ¶¶ 6-7.) (See Compl. ¶¶ 1-2; Defs.'

Thus, in order to establish complete

diversity of citizenship and the removability of this case, the joinder of the non-diverse Defendants must be found to be fraudulent. "Fraudulent joinder is a judicially created doctrine that

provides an exception to the requirement of complete diversity." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). three The Eleventh Circuit has recognized fraudulent joinder in situations: (1) where there is no possibility that the

plaintiff can prove a cause

of action against the non-diverse

defendant; (2) where there is outright fraud in the plaintiff's pleading of jurisdictional facts; and (3) where there is no outright fraud, but where the improper joinder is so egregious as to

constitute fraudulent joinder.

Id. at 1287, 1289.

The removing

Defendants bear a "heavy" burden of proving that joinder of the resident Defendants was fraudulent. 1536, 1538 (11th Cir. 1997). See Crowe v. Coleman, 113 F.3d

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The present record in this case does not support a finding of fraudulent joinder.6 The Court observes that a defendant bears a "If there is even

heavy burden in establishing fraudulent joinder.

a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." quotation marks omitted). Triggs, 154 F.3d at 1287 (internal

In this case, Plaintiff has pled a count Because Georgia recognizes

of defamation against all Defendants.

defamation as a viable cause of action, see, e.g., Lewis v. Meredith Corp., 293 Ga. App. 747, 748-49, 667 S.E.2d 716, 718-19 (2008), the Court cannot conclude that Plaintiff has fraudulently joined the nondiverse Defendants. Furthermore, although Defendants have filed a

motion to dismiss pursuant to Rule 12(b)(6) and thereby contend that Plaintiff cannot prove his cause of action against Defendants, the Court, when determining whether Plaintiff fraudulently joined the non-diverse Defendants, must not "weigh the merits of . . .

[P]laintiff's claim beyond determining whether it is an arguable one under state law." Crowe, 113 F.3d at 1538. The present record Since

simply does not support a finding of fraudulent joinder.

complete diversity of citizenship does not exist among the present

As with the jurisdictional amount, Defendants shall fourteen days to submit evidence of fraudulent joinder.

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be

given

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Plaintiff

and

Defendants,

this

Court

lacks

subject

matter

jurisdiction over this action. CONCLUSION As discussed above, the Court finds that it lacks subject matter jurisdiction over this action. Accordingly, the Court remands this Defendants'

case to the Superior Court of Muscogee County, Georgia. Motion to Dismiss (Doc. 3) is denied as moot.

Since the Court found lack of jurisdiction sua sponte, the Court finds that Defendants should be permitted to submit additional argument and/or evidence to establish subject matter jurisdiction. Accordingly, Defendants shall be allowed to file a motion for

reconsideration within fourteen days of today's Order which shall include their good faith arguments and evidence in support of subject matter jurisdiction. Of course, if the Court finds any arguments to

lack a good faith basis, the Court will not hesitate to impose the appropriate sanctions. Consequently, Defendants should carefully

consider whether a motion for reconsideration is appropriate.

IT IS SO ORDERED, this 10th day of July, 2009.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

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